Rethinam Alias Anna Samuthiram Ammal And Others Petitioners v. Syed Abdul Rahim

Factual and Procedural Background

The plaintiffs filed a civil revision petition under Article 227 of the Constitution of India challenging an order dated 27 August 2004 of the Trial Court which rejected their application to amend the plaint. The suit had originally been filed for a permanent injunction. After the commencement of trial, the plaintiffs sought to amend the plaint to pray for a declaration of title and a decree for recovery of possession, on the ground that the defendant had disturbed possession during the pendency of the suit. The Trial Court rejected the application for amendment, relying on a decision of this Court in P. Subba Naicker v. Veluchamy Naicker, 2004 (2) CTC 742, and on the proviso added to Order 6, Rule 17 of the Code of Civil Procedure by the Code of Civil Procedure (Amendment) Act, 2002 which, it held, bars amendment after commencement of trial unless the party shows that despite due diligence the matter could not have been raised before trial. The plaintiffs brought the present revision challenging that rejection.

Legal Issues Presented

1. Whether the proviso inserted into Order 6, Rule 17 by the Code of Civil Procedure (Amendment) Act, 2002 (which restricts amendment of pleadings after commencement of trial unless despite due diligence the matter could not have been raised earlier) applies to pleadings (including the plaint) that were filed before 1 July 2002.
2. Whether, on the facts of this case, the Trial Court erred in refusing to allow amendment of the plaint after commencement of trial when the amendment was necessitated by alleged disturbance of possession during pendency of the suit.
3. Whether the earlier decision in P. Subba Naicker v. Veluchamy Naicker, 2004 (2) CTC 742 (on which the Trial Court relied), is binding in the face of the specific provision contained in Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002, and if not, whether it was rendered per incuriam.

Arguments of the Parties

Plaintiffs' (Appellants') Arguments

• The plaint was required to be amended because, according to the plaintiffs, the defendant disturbed their possession during the pendency of the suit, thereby necessitating relief for declaration of title and recovery of possession in addition to the relief originally sought (permanent injunction).
• Implicitly, the plaintiffs relied on the law governing amendment of pleadings as it stood prior to 1 July 2002 (i.e., the position that amendments could be allowed even after trial commencement where appropriate), because their plaint was filed before the operative date of the 2002 Amendment.

Defendant's (Respondent's) Arguments

• The Trial Court (and the respondent before this Court) relied on the decision in P. Subba Naicker v. Veluchamy Naicker, which applied the proviso to Order 6, Rule 17 as inserted by the 2002 Amendment and held that amendments after commencement of trial are barred unless the party shows they could not, despite due diligence, have raised the matter earlier. On this basis the application to amend was opposed as impermissible and as an attempt to drag proceedings.
• However, before the revisional bench, the learned counsel for the respondent additionally brought to the Court's attention the specific saving provision contained in Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court proceeded step-by-step through the legislative and precedential framework governing amendment of pleadings:

1. It observed that Order 6, Rule 17 originally permitted amendment of pleadings at any stage. The Code of Civil Procedure (Amendment) Act, 2002, effective from 1 July 2002, added a proviso to Order 6, Rule 17 providing that no application for amendment shall be allowed after the trial has commenced unless the Court concludes that, despite due diligence, the party could not have raised the matter before commencement of trial.
2. The Court noted intervening legislative history: the Amendment Act, 1999 had, in its First Schedule, provided for omission of Rules 16 and 17 in Order 6, but the 2002 Amendment retained the text of Order 6, Rule 17 subject to the proviso. Thus the 2002 Act reinstated Rule 17 with a new proviso under Section 7 of that Act.
3. Crucially, the Court examined Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002 (the Repeal and Savings provisions). That provision states that the provisions of Rules 5, 15, 17 and 18 of Order 6 as omitted/inserted/substituted by the 1999 and 2002 Amendments shall not apply in respect of any pleading filed before the commencement of Section 16 of the 1999 Amendment and Section 7 of the 2002 Act. The Court read this to mean that the proviso added by the 2002 Amendment to Order 6, Rule 17 does not apply to pleadings (including the plaint and written statement) filed before 1 July 2002.
4. Applying that statutory saving to the facts, the Court held that in respect of the plaintiffs' plaint (filed before 1 July 2002), the proviso introduced by the 2002 Amendment had no applicability. Consequently, the principles governing amendment of plaints as in force before 1 July 2002 would govern the present petition.
5. The Court found that the Trial Court had applied the proviso (as interpreted in P. Subba Naicker) to refuse amendment. Since the specific saving provision (Section 16(2)(b)) had not been brought to the attention of the Judge in P. Subba Naicker, that decision was rendered per incuriam. The revisional Court relied on the settled principle (citing Municipal Corporation Of Delhi v. Gurnam Kaur) that a decision per incuriam is not binding.
6. On this basis the revisional Court concluded that the impugned order rejecting the amendment was liable to be set aside. The Court allowed the civil revision petition and permitted the plaintiffs' amendment to the plaint, subject to a cost condition (payment or deposit of Rs. 1,000 to the respondent within four weeks).

Holding and Implications

Holding: The civil revision petition is allowed and the Trial Court's order dated 27 August 2004 rejecting the application to amend the plaint is set aside.

Direct consequences and directions:

• The amendment to the plaint prayed for by the plaintiffs is permitted subject to payment or deposit of costs of Rs. 1,000 to the respondent within four weeks from receipt of the order.
• Connected matters C.M.P No. 1823 of 2004 and VCMP No. 22 of 2005 are closed.

Broader implications (as addressed in the opinion):

• The Court held that the proviso to Order 6, Rule 17 (as inserted by the 2002 Amendment) does not apply to pleadings filed before 1 July 2002 by virtue of Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002; therefore, the pre-1.7.2002 law on amendment of pleadings governs such cases.
• The Court concluded that the earlier decision in P. Subba Naicker was rendered per incuriam because the judge in that case had not been shown Section 16(2)(b); consequently that earlier decision does not operate as a binding precedent for the present matter (relying on the per incuriam principle cited in Municipal Corporation Of Delhi v. Gurnam Kaur).
• The opinion does not purport to lay down any wider or novel principle beyond the statutory interpretation and its direct application to the present revision; the direct effect is the grant of the amendment with the specified cost condition.